JUDGMENT
Yatindra Singh and Ran Vijai Singh, JJ.
1. The main question involved in this appeal is when can a contract of personal service be enforced in a civil suit.
THE FACTS
2. There is a school known as Shri Shanker Uchchtar Madhyamik Vidyalaya, Pargana Ghosi, district Azamgarh (the School). This school imparts education up to 10th class and is recognized under Intermediate Education Act 1921 (the Act); it is also given grant-in-aid by the State Government in respect of salaries of its teachers and non-teaching staff.
3. The plaintiff-appellant was appointed as Class IV employee in the School on 1.3.1976 and was subsequently confirmed. There was misappropriation of Rs. 1400/- from the Boys’ Fund. It was alleged that the plaintiff-appellant had forged the signatures of the Principal and had taken out the money. The defendant-respondent was the officiating principal of the school. He called an explanation of the plaintiff-appellant on 11.5.1977. Initially a reply was submitted on 11.5.1977. Thereafter the plaintiff-appellant admitted his guilt on 15.5.1977. Subsequently, his services were terminated on 12.6.1977.
4. The plaintiff-appellant filed the original suit No. 259 of 1977 against the officiating principle, who is sole defendant-respondent in the suit, for declaration that:
The termination order dated 12.6.1977 was illegal, null and void; and
An injunction be issued restraining the defendant-respondent from interfering/stopping the plaintiff-appellant from functioning as the Class IV employee of the School.
The defendant-respondent filed written statement denying the allegations of the suit.
5. The trial court decreed the suit on 16.5.1979. The court restrained the defendant respondent for interfering with the service of the plaintiff-appellant. The court while decreeing the suit recorded the following findings:
The Civil Court has jurisdiction to decide the suit. This was held earlier on 24.8.1978.
The defendant-respondent could not be officiating Principal of the School.
The principle of natural justice were not followed in conducting the enquiry.
6. The defendant-respondent filed an appeal. This appeal was allowed on 12.11.1980 and the suit was dismissed. The appellate court recorded the following findings:
It can not be said that the defendant-respondent was not the officiating principal of the School.
There was no illegality in terminating the services of the plaintiff-appellant.
7. Aggrieved by the order of the appellate court, the plaintiff-appellant has filed the present second appeal. The Single Judge by his order dated 3.12.1999, referred the question of maintainability of the suit to the larger bench by observing that:
In this way I find that there is a serious controversy over the aforesaid question regarding maintainability or the suit in Civil Court. In my humble opinion the matter requires consideration by a larger bench and therefore, the entire record be remitted before the Bench nominated by the Hon’ble Chief Justice. Lay before the Hon’ble Chief Justice for orders.
This is how the case has come up before us.
POINTS FOR DETERMINATION
8. It was agreed by the parties that instead of answering the referred question, the entire appeal may be decided. We have heard Sri D.B. Yadav, counsel for the plaintiff- appellant and Sri C.K. Rai, counsel for the defendant-respondent, and Sri V.K. Singh who was appointed as friend of the Court. The following points are to be decided in the appeal:
(i) Whether the suit is maintainable in the Civil Court?
(ii) Whether the prior approval of DIOS was necessary before terminating the services of the plaintiff-appellant?
(iii) Whether on the finding recorded by the first appellate court, the plaintiff is entitled to any relief?
(iv) Whether any relief can be granted to plaintiff-appellant in absence of Committee of Management, the DIOS and the State of UP?
Point No. 1: Three Exceptions Should Be Extended.
9. The counsel for the defendant respondent submitted that the suit is not maintainable as,
The suit is for declaration that termination order is illegal and for permanent injunction restraining the defendant-respondent from interfering his right to function as Class-IV employee;
It is essentially a suit for specific performance of personal service; and
The right can neither be enforced in a suit, nor such a suit can be decreed.
10. The counsel for the defendant-respondent also cited the decision in Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors. AIR 1976 SC 888 (the Vaish College case) decided by the Supreme Court and brought to our notice the following observations of the Supreme Court:
On consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognised exceptions-
(i)where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India;
(ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and
(iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute.
This case has also been followed by a division bench of our court reported in Agarwal Digambar Jain Samiti v. Badri Prasad Srivastava (the Agrawal Digambar case). According to the counsel for defendant-respondent, the case in hand does not fall in any of the aforesaid three categories and as such it is not maintainable.
11. It is correct that the Supreme Court in the Vaish College case has- laid down the three categories where a suit for contract of personal service has been held to be maintainable and this case is not covered in that but, are these three categories exhaustive? Was it necessary to provide exhaustive list of categories in that case? Shouldn’t the observations be confined to the facts of that case?
12. The facts of the Vaish College case as found by the Supreme Court were as follows:
(i) The College was being managed by a society which was registered under the Societies Registration Act. It was held by the High Court that it is a statutory body. This was reversed by the Supreme Court and it was held that the committee of management was not a statutory body or rather it was held to be a private body.
(ii) There was no agreement between the Executive Committee of the College and the Principal.
(iii) In absence of any agreement, the statutory provisions requiring prior approval of the Vice Chancellor did not apply.
13. The aforementioned findings are clear from the following observations of the Supreme Court:
It may be noticed that so far as the plea of the plaintiff-respondent that he had executed an agreement with the Executive Committee of the College which formed the basis of the terms of his contract of service was concerned the learned Additional Civil and Sessions Judge also affirmed the finding of the Munsif on this point and held that there was no such agreement. Even before us this finding was not disputed by the learned Counsel for the plaintiff-respondent who has proceeded on the assumption that there was no agreement executed between the plaintiff and the defendant as alleged by the plaintiff. [Paragraph-5].
…
In the instant case, the statute merely enjoined that the agreement between the employer and the employee should be incorporated according to the form and conditions prescribed by the statute and until the said agreement is executed the provisions of the Statute would not apply proprio vigore.[Paragraph-12].
14. Thus it is clear that in the Vaish College case the services were terminated by a private body. There was also no violation of any statutory provision. On these facts, the three categories enumerated in the Vaish College case are exhaustive but if the facts are otherwise then it may not not be so; for example:
(i) If a body (which is not a statutory body) is a state within the meaning of Article 12 of the Constitution and acts contrary to the regulations and byelaws framed by it then it will be violating Article 14 of the Constitution. Can it be still said that a suit is not maintainable for enforcement of Article 41?
(ii) If a private body (which is neither statutory body nor a state within the meaning of Article 12 of the Constitution) acts contrary to mandatory provisions of law. Or in other words acts contrary to the mandate of the legislature. Can if still be said that a suit is not maintainable?
15. In our opinion on the facts of the Vaish College, the three categories mentioned therein are exhaustive. Nevertheless, if the facts are otherwise then they may not be so. In fact this was explained in the judgment itself by Justice Bhagwati in his concurring but separate judgment:
But in any event it does appear to me that the three exceptions formulated in the statement of law laid down by this Court in the above decisions are not intended to be and cannot be exhaustive. The categories of exceptions to the general rule should not be closed, because any attempt at rigid and exhaustive formulation of legal rules-any attempt to put law in a straitjacket formula-is bound to stifle the growth of law and seriously cripple its capacity to adapt itself to the changing needs of society. In fact, Ray J., as he then was, speaking on behalf of this Court in Sirsi Municipality v. Cecelia Kom Francis pointed out that the third exception applied not only to employees in the service of “bodies created under statutes”, but also to those in the employment of “other public or local authorities.” It may be a possible view – and some day this Court may have to consider it-that where law, as distinct from contract, imposes a mandatory obligation prescribing the kind of contract which may be entered into by an employer and the manner in which alone the service of an employee may be terminated, any termination of service effected in breach of such statutory obligation would be invalid and ineffective and in such a case the court may treat it as null and void. [Paragraph 32 of the judgment].
16. In our opinion the following two categories may be added to three mentioned in the Vaish College case:
(iv) Where a body which is non-statutory but is ‘State’ within the meaning of Article 12 of the Constitution acts contrary to the Rules, Regulations and bye-laws framed by it.
(v) Where a private body (which is neither statutory nor ‘State’ within the meaning of Article 12 of the Constitution) acts in violation of any mandatory provision of statutory law.
17. We would have, either finally decided this point or if necessary referred it to the larger bench for decision, however, in view of our finding on other points, it is not necessary to do so. Even if it is taken that these two categories as mentioned above are added, no relief can be granted to the plaintiff-appellant. (Kindly see Appendix-1)
Point No. 2: No Violation of any Statutory Provision.
18. The committee of management is not a statutory body. This is clear from the Vaish College case as well as Aley Ahmad Abidi v. DIOS, Allahabad and Ors. . The committee of management is also not a State within the meaning of Article 12 of the Constitution. So the fourth exception does not apply. However, is there violation of any mandatory provision of statutory law?.
19. The counsel for the appellant submitted that before terminating the services of class IV employee prior approval of the Inspector was necessary under regulation 31 of Chapter-Ill. In support of his submission, he has also brought to our notice the following decisions:
(i) Daya Shanker Tewari v. Principal RDBM Uchchatar Madhyamik Vidyalay Neogaon, Mirzapur and Ors. 1998 (1) ESC 403 (All);
(ii) Principal Rastriya Inter College, Bali Nichlaul, v. DIOS and Ors. : 2000 (1) ESC 704 (All);
(iii) Raj Kumar Sharma v. Joint Director of Education (Girls), directorate of Education UP Allahabad and Ors. (1993) 2 UPLBEC 1402. Is this submission correct?
20. Section 16-G of the Act relates to conditions of service. Initially the title of this section was ‘Conditions of Service of Teachers’. Subsequently by UP Act No. 26 of 1975 this title was amended and words ‘Conditions of service of Heads of Institutions, teachers and other employees’ were substituted. Sub-section (1) of Section 16-G {Section 16-G(1)} provides that conditions of service of every person employed in a recognised institution may be prescribed by Regulations and agreement which is not inconsistent with provisions of the Act and the Regulations. Sub-section (3) of Section 16-G {Section 16-G(3)} provides that the Principal, Headmaster and teacher may not be discharged, removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments without the prior approval in writing of the Inspector. The word Inspector means the District Inspector of Schools, (DIOS) and in relation of institution for girls, the Regional Inspectress of Girls School {Section 2(bb) of the Act}. A party aggrieved by grant of approval can also file appeal before the Regional Deputy Director of Education. Section 16-G (3) does not apply to the non-teaching staff.
21. The Board has framed regulations under Section 15 of the Act. Regulation 31 of Chapter III of the Regulation (see Appendix-II of the judgment) provides that the prior approval of the Inspector will be necessary for the punishments enumerated therein. This includes dismissal also which is the case in present. Regulation 31 unlike Section 16-G(3) of the Act is not confined to the teachers and Head of Institutions but refers to the ’employees’ which prima facie include non teaching staff as well as class IV employees also.
22. Regulation 31 has been amended twice:
(i) By the Notification No. 789 (1)/15(7)-75 dated 1st March 1975 published vide No. Board-7/562-V-8 (Board September 1974) Allahabad dated 10th March 1975 (the 1975 Notification). By this notification two clauses were added in regulation 31.
(ii) By Notification No. 8372/15(7)-12(103)/77 Lucknow : dated 27th February, 1978 (the 1978 Notification). By this Notification the two clause added by the 1975 Notifications were modified..
23. The effect of the first clause added by the 1975 Notification was to empower the principal to award any punishment to class IV employees and his order is subject to appeal before the Committee of Management. The second clause provides further appeal to the DIOS/Regional Inspector. These clauses are further amended by the 1978 Notification, however substantially they remain the same.
24. The services in the present case were terminated on 12.6.1977 and as such the Regulation 31 as amended by the 1975 notification was applicable. The question is, whether Regulation 31 as amended by the 1975 Notification requires prior approval of the Inspector before terminating the services a class IV employee or not.
25. It is correct that the cases (mentioned in paragraph 19 of this judgment) do support the submission of the plaintiff-appellant. However these cases have not taken into account the amendment made in Regulation 31 by the 1975 or 1978 Notification. They have taken into account regulation 31 as it was originally framed. These cases have not considered the regulation 31 as amended from time to time and can not be pressed to show that prior approval was necessary before terminating services of class IV employees. This question has to be decided in the light of the regulation 31 of Chapter III as amended.
26. Regulation 31 as it was originally framed required prior approval of the DIOS before terminating service of an employee. However, after addition of two clauses in regulation 31 in 1975 it clearly empowered the principal to terminate the services of class-IV employee. It further provided an appeal to the Committee of Management and thereafter to the Inspector itself. In case prior approval of Inspector was necessary before terminating services of class IV employee then what was the point in providing appeal first to the committee of management and then to the Inspector. In case the Inspector has already granted approval for terminating the service then can he change his decision in the appeal. In our opinion the purpose of including two clauses by 1975 notification, which continued with some modification by 1978 notification, clearly show that the principal is empowered to terminate the services of the class-IV employee without taking any prior approval of the Inspector and his decision is final; it is subject to an appeal before the committee of management then to the appeal before the Inspector.
27. We are not alone in taking this view. It is also so held by a division bench of our court after considering these amendments in the case of Ali Ahmad Ansari v. DIOS Kushinagar and Ors. 2006(3) ESC 1965 All) DB). The court held that:
The scheme of the Regulations 31 to 45 Chapter-Ill, thus, do not provide that prior approval is required for awarding punishment of removal or termination of a Class-IV employee from the District Inspector of Schools.
28. In view of above we hold that after amendment of Regulation 31 by the 1975 Notification, it is not necessary to take prior approval of the Inspector before terminating the services of a Class-IV employee.
29. There will be no difference in outcome of this case, even if the three exceptions laid down in the Vaish College case are extended by the two exceptions mentioned in paragraph 16 of this judgment: this case is neither covered by the fourth nor by the fifth.
Points No. 3: Finding Not Vitiated
30. In our opinion, even if it is taken that the prior approval of the Inspector was necessary and the suit was maintainable before the Civil Court no relief can be granted to the plaintiff-appellant.
31. The trial court had held in favour of the plaintiff-appellant but the appellate court has recorded the following findings:
The defendant-respondent was officiating principal and could terminate the services of plaintiff-appellant.
There is no violation of principle of natural justice in terminating the services of the plaintiff-appellant as he himself admitted his guilt and his admission was nor properly explained.
32. These are findings of fact. There is nothing to show that these findings are illegal. On these finding, even if the prior approval of Inspector was necessary no relief could be granted to the plaintiff-appellant.
Point No. 4: Necessary Party Not Impleaded.
33. The School was a recognised institution. The grain-in-aid is given by the State Government. It is given for the post that was held by the plaintiff-appellant. The committee of management, the State Government and the DIOS have not been impleaded as parties. In their absence no relief can be granted as the damages are to be paid by the State Government. It is not a fit case in which any relief should be granted in absence of these parties. This is also clear from the decision ; Shiv Kumar Tiwari (D) Lrs v. Jagar Narain Rai and Ors.
CONCLUSIONS
34. Our conclusions are as follows:
(a) In a suitable case, the court may consider whether the three exceptions mentioned in the Vaish College case are exhaustive or not and may consider including the following two more exceptions,
(iv) Where a body which is non-statutory but is State within the meaning of Article 12 of the Constitution acts contrary to the Rules, Regulations and Bye Laws framed by it.
(v) Where a private body (which is neither statutory nor state within the meaning of Article 12 of the Constitution) acts in violation of any mandatory provision of statutory law.
(b) After amendment of regulation 31 by the 1975 Notification prior approval of the Inspector (DIOS here) is not necessary before terminating the services of class IV employee,
(c) No mandatory provision of statutory law was violated before terminating the services of the plaintiff appellant.
(d) In absence of of State and DIOS as a party, no relief can be granted to the. plaintiff appellant.
35. In view of our conclusions, the appeal is dismissed however, the parties shall bear their own cost.
